Legal Articles

As we move swiftly through the digital age, organisations are choosing to use electronic and digital solutions to save time and money, such as making use of electronic signatures and communication.

Firstly, by digitizing most functions, business owners and organisations are able to minimise their consumption of paper and ink which has less of an impact on their pockets as well as the environment.

Secondly, this paperless solution to communication saves businesses a lot of valuable time as it’s no longer necessary to make time to meet face to face in order to sign a single document.

Are Electronic Signatures Legally Binding in South Africa?

However, many individuals are still sceptical about the validity of electronic signatures and whether or not they are legally binding.

To begin, one must first understand the primary purpose of a signature, which is to provide evidence of:

• The identity of the signatory
• The fact that the signatory intended to sign his or her own signature in agreement
• The fact that the signatory approves and accepts the literature he or she is signing for

In order for signatures (including electronic signatures) to be valid, they must be capable of fulfilling all of the above-mentioned functional requirements.

Validity of Electronic Signatures in South Africa

Currently, both the Electronic Communications and Transactions Act (ECTA), 25 of 2002 and the common law regulate electronic signatures in South Africa.

According to common law, in order for a signature to be valid:

• The name or mark of the person signing must appear on the document
• The person signing it must have applied the signature themselves
• The person signing must have intended to sign the document wilfully

With the introduction of digital communication and the implementation of the ECTA, South Africa began to recognise the legality and validity of electronic signatures.

Currently, with the discussed legislature in place, digital signatures are considered functionally equivalent to traditional pen on paper signatures.

As per the ECTA, electronic signatures must meet all the above-mentioned requirements in order to be deemed a valid and legal signature.

Types of Digital Signatures

According to the ECTA, there are two types of digital signatures:

Standard Electronic Signature

A standard electronic signature includes and scanned or digital signatures which are acceptable when they type of signature required for the agreement in question has not been specified.

In these cases, the ECTA indicates that electronic signatures are deemed legal where:

• A method is used to identify the sender and to indicate the sender’s approval of the information communicated
• Having regard to relevant circumstances at the time, the method was appropriate and reliable for the intended purposes of communication

Advanced Electronic Signature

Some instances require, by law, an advanced electronic signature:

• A suretyship agreement
• Signing as Commissioner of Oaths

There are some documents that are entirely excluded from being concluded electronically:

• Long-term leases of land exceeding a period of 20 years
• Agreements for the sale of immovable property
• Bills of exchange
• Signing of a will

Van Deventer & Van Deventer Incorporated – Attorneys & Notaries in South Africa

Making use of and accepting electronic signatures can help organisations save tremendously on printing costs as well as time.

For more information on the legality of electronic signatures in South Africa, please feel free to contact our attorneys in Johannesburg and Cape Town.